Letter to the Inspector General for the Florida Attorney General's Office

8/14/2019 Letter to the Inspector General for the Florida Attorney General's Office

1/23


2/23

MESSAGE CONFIRMATION

DATE : OCT-10-2006 TUE 0 9 : 2 7 AMNAME : MARK A ADRMSTEL. :

PHONE : 1 8 5 0 9 2 2 3 8 5 4PAGES 21 / 2 1START TIME : 1 0 - 1 0 0 9 : Z l A MELAPSED TIME : 0 5 ' 2 2 "MODE : ECM BLACKRESULTS : OK

first page of recent document transmitted ..

Fraafimb@everSheetfa: InmrsD. Vamado, 1 - r a w S.ndrr: xMa&,&dans JDiMBAiarlA 8Ih922-3654 ThlPbc. : ZI --nar o r w k o. z0Oa EC.Rspnl tw h u e a t #was invn4mllollo f o a m s . f f ich AsrarrentAmcy Ocoas i&STATE OFFLORIDAw. MARKA.ADAMS: C a ~ c N o . :?WE-278


3/23

Mark A. Adams JD/MBAP.O.Box 1078; Valrico, FL 33595Telephone (813) 643-4412Facsimile: 866-691-0345

October 10,2008

James D. Varnado, Inspector GeneralOffice of the Attorney GeneralPL-01,The CapitolTallahassee, FL 32399-1050VIA U.S. MAlL and FACSIMILE to 850-922-3854Request for an investigation of Donna S . Koch, Assistant Attorney General,regarding STATE OF FLORIDA vs. MARK A . ADAM S; Case No.: 2D06-278Dear Mr. Vamado:Enclosed you will find the Appellee's Motion to Vacate Orders Entered Contrary to F lorida'sConstitution and Motion to Dismiss this Proceeding as the Record Cannot Show that the LowerCourt had Jurisdiction to enter any Order Sanctioning the Appellee or Charging the Appelleewith Criminal C ontempt.The record shows that Judge Crockett Farnell did not have jurisdiction to issu e any ordersanctioning me or any udgment against me after October 1,2 002, and that he did not havejurisdiction to issue any order to show cause charging me with indirect criminal contempt forfiling a motion to vacate the void orders he entered without jurisdiction. The record also showsthat Timothy W. Weber, Esquire requested the issuance of such ord ers on an ex parte basis.The actions taken by Judge Farnell under color of law without jurisdiction and on an ex partebasis at the request of Timothy Weber violated my rights to due process under the Fifth andFourteenth Amendments to the C onstitution of the United States, and therefore, are criminalviolations of 18 U.S.C. 44 241 and 2 42. See, e.g., US. v. Lanier,520 U.S. 25 9,26 7 (1997).In addition, such acts show probable cause that Weber and Farnell committed violations ofFlorida Statutes 9 838.015 prohibiting bribery and acceptance of bribes and of Florida Statutes 9838.016 prohibiting offering unlaw hl compensation and acceptance of unlawful compensationfor official acts both of which are felonies of the second degree, and such acts sho w probablecause that Weber and Famell committed violations of 18 U.S.C. 9 1951 and of Florida Statutes 836.05 which prohibit extortion which is a felony of the second degree under Florida law.Furthermore, the record shows that James Birkhold, Clerk of the Second District Court of Appealof Florida, and a number of members of that court have engaged in fitrther violations of myrights to due process provided by a number of rules of procedure, controlling precedent, the


4/23

Constitution of Florida, and the Fifth and Fourteenth Amendm ents to the C onstitution of theUnited States as specified in the enclosed motion. These are further criminal violations of 18U.S.C. $8 241 and 242 and show probable cause that Birkhold and others at the Second DistrictCourt of Appeal committed violations of Florida Statutes 8 838.015, 5 838.016,and $ 836.05 and18 U.S.C. $5 3,4 and 1951.In spite of the foregoing, Donna S. Koch has failed to take action to dism iss the State's appealand has failed to report the criminal acts committed by Judge Crockett Farnell, Timothy W.Weber, James Birkhold, and members of the Second District Court. Ms. Koch 's actions arecriminal violations of 18U.S.C. $$3,4,241and 242, and her actions show probable cause thatshe has committed violations of Florida Sta tutes $ 838.015, 838.016, and $ 836.05 and 18U.S.C. 1951.Finally, the aforementioned acts are violations of Florida S tatutes $ 838.022and 914.22and 18U.S.C. $ 5 1512, 1513, and 3771which protect victims of and witnesses to crimes and Federaloffenses and provide criminal penalties for those who engage in actions designed to retaliateagainst such v ictims or witnesses or obstruct the reporting of such crimes.Please review the enclosed document, investigdt: this matter, and take appropriate action toensure the prosecution of these c r i m i i acts. Also, please take action to ensure that members ofthe Attorney General's office do no engage in further criminal conduct by continuing the illegalpersecution of me. Thank you fo r your prompt attention to this request for an investigation.

ark A. Adams JDIMBAEnclosure


5/23

IN THE DISTRICT COURT OF APPEALFOR THE SECOND DISTRICT

STATE OF FLORIDASTATE OF FLORIDA

Appellant,VS .

Case No.: 2D06-278L.T. Case No's:

01-009347-CI-015CTCAB36199Mh4ANO

MARK A. ADAMS,Appellee. I

APPELLEE'S MOTION TO VACATE ORDERSENTERED CONTRARY TO FLORIDA'S CONSTITUTION

ANDMOTION TO DISMISS THIS PROCEEDING AS THE RECORDCANNOT SHOW THAT THE LOWER COURT HAD JURISDICTION TOENTER ANY ORDER SANCTIONING THE APPELLEE OR CHARGING

THE APPELLEE WITH CRIMINAL CONTEMPTCOMES NOW, the Appellee,MARKA. ADAMS, and files the Appellee's

Motion to Vacate Orders Entered Contrary to Florida's Constitution and Motion toDismiss this Proceeding as the Record Cannot Show that the Lower Court hadJurisdiction to enter any Order Sanctioning the Appellee or Charging the Appelleewith Criminal Contempt showing:1. Article 5, g 4 of the Constitution of Florida provides for the organization and

jurisdiction of Florida's District Courts of Appeal, and he pertinent part states,"Three judges shall consider each case and the concurrence of two shall benecessary to a decision." Pmphasis added). Florida's Constitution does not


6/23

allow more than three judges to consider a case before a district court of appealnor does it allow any decision to be entered if less than two judges concur.

2. Florida Rule of Judicial Administration 2.210(a)(l) governs the exercise of thepowers and jurisdiction of Florida's district courts of appeal, and the pertinentpart states, "Three judges shall constitute a panel for and shall consider eachcase, and the concurrence of a majority of the panel shall be necessary to adecision." The Florida Rules of Judicial Administration do not allow more than

three judges to consider a case before a district court of appeal nor do theyallow any decision to be entered if less than two judges concur, and if they did,such rule would be void as it would be contrary to Article 5, 5 4 of theConstitution of Florida.

3. The pertinent part of Florida Rule of Judicial Administration 2.130 states, "TheFlorida Rules of Appellate Procedure shall control all proceedings in thesupreme court and the district courts.. . "

4. The pertinent part of Florida Rule of Appellate Procedure 9.020(f) defines orderas a decision or order. Of course, both Black's Law Dictionary and Gilbert'sLaw Dictionary define an order as a decision of a court and define a decision asan order of a court.

5. In spite of the clear mandates of Article 5 , s 4 of the Constitution of Florida thatthree judges shall consider each case and of Florida Rule of Judicial


7/23

Administration 2.210(a)(l) that three judges shall constitute a panel andconsider each case, the undersigned has been informed by the Clerk of thisCourt that no panel has been assigned to this case. See paragraph 2 of the letterto the undersigned from James Birkhold, the Clerk of this Court, datedSeptember 15,2008 which is attached asExhibitA.

6. In spite of the foregoing, the online docket shows that as of October 5,2008, atleast nine (9) orders have been entered in this case, and the record shows that atleast 12 orders have been entered, see ExhibitA paragraph 3.

7. The record shows that at least ten different judges have been involved inapproving various orders issued in this case in spite of the clear mandates ofArticle 5, 9 4 of the Constitution of Florida and Florida Rule of JudicialAdministration 2.210(a)(l) that three judges shall consider each case.

8. Furthermore, the record shows that at least five orders have been issued by theClerk of this Court even though only one judge had supported the issuance ofsuch orders in clear violation of the mandates of Article 5, 5 4 of theConstitution of Florida and Florida Rule of Judicial Administration 2.210(a)(l)that the concurrence of two judges shall be necessary to a decision.

9. The foregoing may explain why the key decisions made in this case are contraryto the Florida Rules of Appellate Procedure and controlling precedent.


8/23

10.For example, on August 6,2008, the clerk of this Court entered an order whichstates, "Appellee's motion to require preparation of the record in compliancewith the rules of procedure or to dismiss this proceeding is denied. However,the appellee may attach records from the civil case to his answer brief, whichshall be served within 25 days." See ExhibitBwhich indicates that JudgeStevan T. Northcutt, the Chief Judge of this Court, and Judge Darryl C.Casanueva directed the Clerk to issue this order.

11 However, when issuing this order, these judges overlooked the fact that therecord does not include any document showing that any pleading was filed orany process was served to acquire jurisdiction over the Appellee between thetime that the order approving the Appellee's withdrawal as counsel wasapproved without any reservation of jurisdiction as of October 1,2002' and thetime that the lower court enteredan order granting sanctions against theAppellee on July 3 1,2003. Of course, no such document could be included inthe record because none exists.

12. In addition, this order indicates that Judges Northcutt and Casanueva alsooverlooked or misapprehended points of law including Florida Rules of

1. The lower court's Order Permitting Withdrawal and Substitution of Counseland Denying Motion for Protective Order can be found at pages 85-86 of theincomplete record transmitted to this Court. A copy is attached as Exhibit C.


9/23

Appellate Procedure 9.140(f)(l), 9.200(a)(l), 9.200(f)(2), and 9.200(e) andcontrolling precedent as follows herein.

13.Florida Rule of Appellate Procedure 9.140(f)(l) states, "The clerk of the lowertribunal shall prepare and serve the record prescribed by rule 9.200 within 50days of the filing of the notice of appeal."

14.The pertinent part of Florida Rule of Appellate Procedure 9.200(a)(l) states,"the record shall consist of the original documents, exhibits, and transcript(s) ofproceedings, if any, filed in the lower tribunal.. .."

15.Florida Rule of Appellate Procedure 9.200(f)(2) states, "If the court finds therecord is incomplete, it shall direct a party to supply the omitted parts of therecord. No proceeding shall be determined, because of an incomplete record,until an opportunity to supplement the record has been given."

16.Florida Rule of Appellate Procedure 9.200(e) states, "The burden to ensure thatthe record is prepared and transmitted in accordance with these rules shall be onthe petitioner or appellant."2

17.The progress docket transmitted by the clerk of the lower tribunal shows that anincomplete record of the proceedings was transmitted to this Court.

2. By the way, the Appellant in this case is the State of Florida which has chosento pursue this appeal in spite of the fact that the lower court lacked jurisdictionto enter any sanctions judgment against the Appellee on July 31,2003 and inspite of the f ad that this Court lacks jurisdiction to even hear any appeal by theState of Florida based on the dismissal of a contempt charge.


10/23

18.The Rules do not provide that this Court may allow the Appellee to attach non-existent records to his answer brief which the Rules and controlling precedentrequire the Appellant and the clerk of the lower tribunal to provide if any suchrecords did exist. Instead, controlling precedent requires this Court to dismissthis appeal if the record on appeal does not show that the lower court's subjectmatter jurisdiction had been properly invoked.

19."This court is enjoined to follow controlling decisions of the FloridaSupreme Court; indeed, the court is powerless to do otherwise." Regan v. 177'Industrial Credit Co. , 469 So.2d 1387,1390 (Fla. 1stDCA 1984) approved,487 So.2d 1047 (Fla.1986) citing HofSman v. Jones, 280 So.2d 43 1 (Fla. 1973).(Emphasis added).

20. "All rules prescribed for court procedure are binding on the court and its clerkas well as on litigants and their counsel." Esch v. Forster, 127 So. 336,336(Fla. 1930).

21 .Due process requires a complete record on appeal. See, e.g. , Zhomas v. State,828 So.2d 456,457 (Fla. 4th DCA 2002) and Berube v. State, 771 So.2d 1263(Fla. 2d DCA 2000).

22."An accurate and comprehensive record of the proceedings below is absolutelyessential to fair and efficient appellate review." Haist v. Scarp, 366 So.2d 402,


11/23

404 (Fla. 1978). "This Court should provide every incentive to parties todevelop and preserve an adequate record." Id.

23. Failure to timely file directions to the clerk and to prepare and serve the recordas required by the appellate rules requires dismissal of the appeal. In reLoJon's Estate, 12 So.2d 587,589 (Fla. 1943).

24.The record must show that the lower court's subject matter jurisdictionhad been properly invoked, and if an appellant fails to produce the recordwith the pleading showing that a cause of action has been filed against theappellee, then the appeal must be dismissed. Woo&-Hoskins-Young Co. v .Taylor Development C o ., 122 So. 224,225 (Fla. 1929).

25."Aparty must either be in a suit or out; there is no area of limbo where it issubject to recall. Once a party is dropped from a suit, that party can be joinedagain only by service of process." Hertz International, LTD v. Richardson, 3 17Sodd 824, 828 (Fla. 3d DCA 1975).

2 6 3 s hdarnenta l to our concept of justice that the rights of an individual cannotbe adjudicated in a judicial proceeding to which he has not been made a partyand in which the moving party has failed to bring him properly into court.Alger v. Peters, 88 So.2d 903,906 (Fla. 1956). If a party wants to obtain ajudgment against a person, that party should take the simple steps required to


12/23

bring that person into the jurisdiction of the court according to the dictates ofdue process. Id.

27.Before a trial court's potential jurisdiction of the subject matter can beexercised, it must be lawfully invoked and called into action by pleading andprocess. Lockwood v. Pierce, 730 So.2d 1281, 1283 (Fla. 4th DCA 1999) citingLovett v . Lovett, 112 So. 768 (Fla. 1927). When no proceedings have beenbrought against a particular person or entity, the court does not have subjectmatter jurisdiction to enter a judgment against that person or entity, and if anysuch judgment is entered, it must be reversed. Id.

2S.Subject matter jurisdiction cannot be created by waiver, agreement, orerror of the parties or counsel or by the exercise of the power of the court.84Lumber Co. v. Cooper, 656 So2d 1297,1298 (Fla. 2dDCA 1994).(Emphasis added). The entry of an order or judgment without jurisdiction is afundamental error which requires the appellate court to vacate that order orjudgment. Id. Once a court has lost jurisdiction, a court may only acquire thejurisdiction to determine a cause through a lawfully instituted proceeding. Id. at1299.

29.0nce a party has been dismissed from an action, the trial court is divested ofjurisdiction over that party and the trial court may only regain jurisdiction over


13/23

that party by personal service of original process. See. e.g.,Federal Ins. Go.v.Fatolitis, 478 So.2d 106, 109 (Fla. 2d DCA 1985).

30. If an examination of the record shows that the trial court did not havejurisdiction, an appellate court must reverse the judgment.See. e.g.,Mansfiled v. Swan, 11 1 U.S .379,381 (1 884).

3 1. Violation of a right made specific by statutes, rules or settled interpretations ofthem is a violation of 18U.S.C. $ 242 which provides criminal penalties for adeprivation of rights under color of law. US.v. Lanier, 520 U.S. 259, 267(1997).

32.As no panel has been assigned to this case, all orders entered in it are void asthey are contrary to the clear mandates of Article 5, $ 4 of the Constitution ofFlorida and Florida Rule of Judicial Administration 2.210(a)(l).

33.A~he Appellant has failed to produce a complete record as required by FloridaRule of Appellate Procedure 9.200, the dictates of due process, and controllingprecedent, this Court is required to dismiss this action. In re Lofton's Estate, 12So2d 587,589 (Fla. 1943).

34. As the Appellant has failed to produce any pleading showing that the lowercourt had jurisdiction to enter any order concerning the Appellee after theAppellee's withdrawal as counsel was approved without any reservation ofjurisdiction as of October 1,2002 as required by the dictates of due process and


14/23

controlling precedalt, thisCourt is required to enter ;aa order dismissing h i sappeal. See, e.g., Woo&-Nosh-lroe4ng Co. v. TaylorDeveloymevrt Co., 3 22So. 2 4 , 2 2 5 (Fla. 19299) tnd&.firrisfiEed. &an, I E I U.S. 379,3E X (I884),

WHEREFORE, the Appellee respectfuily reqtlests &;at this Corartimmedi;itely comply with Adicie 5 , !j4 of the Constitaion of Florida and FloridaRule of Jttdicial Adnlinistration2.21O(aH1j by assiping a panel to this case andimmediately somplywith th e Florida Rules of ,4ppellate Procedure and controtlingprecedent by issuing an order dismissing this appeal.

CERTIFICATES OF SERVICEAVD COMPLIANCEI I-IIFiREBY CERnFV that this document earnplieswith the requirenlents of

Florida Rule of Appellate Procedure 9.210(a)(2) and that a copy hereof has bee11Funlished by U.S. Mail to Donna S. Koch, Assishnt AAomey General, at 3507 E.Fror~tageRoad, Suite 200; Tampa, FL 33607, facsimile phone nmber 813-281-

+- -5500 an this -^-day of October, 2008.

Mark A. AdarnsP.O. Box 1078Valrico, FL 33595


15/23

Exhibit A


16/23

2NU ~ IWHKT OIIRTF APPEALPOST OFFICE ROS327

I.AXELAND. FL 338024327(863)494-2290

September 15,2008

Mark A. Adams, JDlMBAP. 0. Box 1078Valrico, FL 33595Dear Mr. Adams:This responds to your letter of September 10, 2008, which makes requests foraccess to judicial records. These are governed by Florida Rule of JudicialAdministration 2.420. As to your requests:1) Iam advised that during your visit to the court on September 10, 2008, you wereprovided the case file in 2006-278 so your request for inspection has beenfulfilled. If you wish a copy of the file, please advise us and we w ill conduct apage count, and upon receipt of the required fee of $1 per page we will provideyou a copy of the file. All records referenced below are housed in the court's file--and may be inspected by perusing the file--except the docket report which is an

electronic document generated from the court's case management system, whichmay be inspected at this office upon reasonable notice.2) There are no records that disclose the identity of judges assigned to 2006-278.No panel has been assigned and it is unlikely one will be until briefing has beenconcluded.3) The records that disclose the dates orders issued in this case would be thecopies certified by the clerk to be true copies of the orders themselves, whichnumber twelve. These can be viewed by looking at the file in this office or wewould be pleased to copy and provide them to you for $1 per page and each ofthem consume a single page. Also there is a docket report that will ~d en t~ fyhedate each order issued. This is six pages in length and will be provided for thefee of $6. The records that d isclose the dates the individuals ruled upon mattersthat resulted in issued orders are housed within the court file and number twelve,and will be provided to you a t a cost of $12. These a re the orders themselves.These are not the same twelve documents alluded to above, which are recordscertified by the clerk to be true copies of the actual orders. There are no recordsthat provide the full name of judges engaged in the rulings on any of theseorders.


17/23

Mr. Mark AdamsSeptember 15,2008Page Two

4) As noted in answer #3 above, there are no records that provide the full name ofjudges engaged in entering rulings in this case. As for the dates of the orders,this was addressed in answer to question #3.5) This court maintains no incoming mail logs or other records showlng what thiscourt receives by mail on any given day.6) This court maintains no records documenting internal distribution of mail tojudges.7) Docirce~itshe caurt may have that reflect the diatrib~tion r circilatran of asubmlsslon for cons~derat~onf its udges are part of the decision-makingprocess and are exempt from disclosure per rule 2 420(c)(l)

Sincerely,

dames irkh hold8 Clerk


18/23

Exhibit B


19/23

R\i THEDISTRICT COURT OF APPEALFOR THE SECOND DISTRICT

STATE OF FLORIDA

STATE OF FLORIDAAppellant,

VS.

Case No.: 2 9 6 - 7 7 8L.T. Case No's:01 -009347-CI-015CTCAB36199MMANO

MARK A.ADAMS, .. ..-.d? 0 -.


20/23

Exhibit C


21/23

INTHEClRCUIT COURTOF TXE SIXTH JUDICIAL CIRCUITIN AM> FORPINELLAS COUNTY, FLORIDAcw a DW~SION

JEFFREY S. SMITH andSHARON P.SMTM3,

Plaintiffs. .VS.

CORPORATESPORTSMARKETINGGROW, rPiC ,CHRISTOP= C m G ,and DWAYNE MARTINS,

CORPORATESPORTS3 A A l W E m GGROUP, INC.,

VS. CASE NO.: 01-9347-CI-015JEFFREY S . SMITH, JOHND.KEm,and LAFAYETTE MARKETINGGROW, INC., a FloridaCorporation,

ORDER PmumrnpJGWITBIER~WALME)UBSTTTU~ON F COUNSELAND DENYING MOTION FOR PROTECTIVE ORDER

THIS MATIER came before the Court on October 1,2002on tbeMotion for ProtectiveOrder filed by Jesse L. Skipper, Esq. and John W . Day, Esq. on behalf of the Plaintiffs,JEFFREY SMXI'II and SHARON SMITW, d g ertificate of senrtce date of September 30,2002; the Motron to Withdraw of Jesse L. Skipper, and John W. Day, bearing cemficate o fservice date of September 20, 2002; the Notice of Substitution of Colinsel (and apparent requestof Mark A. Adams, Esq. to withtiraw), bearing certificateof servicedate ofAugust 29,2002; and

EXHIBITB85- -.


22/23

Defendants' Notice of Objections to the Withdrawal of Mark A. Adams, Esq. as Counsel andMotlee of Substituhou of Cotmsef, beanng certificateaf s m c e date of September 5,2002. TheCourt, havmg conndered the motions and representahons of counsel at the heanng, and beingotherwise filly advised in the premises, hereby:

ORDEW as foHows:1. Jesse L. Skipper, John W. Day and Mark A. Adams are hereby permitted to

withhaw from representationof any and all parties to this action to whom tbey were previouslycounsel of record, effective October 1,2002.

2 . The Court's prior order recognizing Joseph R. Park, Esq. as counsel of record forJohn I>. Kerin and Lafayem MarketingOroup. Inc. is I~erebyxpressly redfirmed

3 Plaintiffs JEFFREY S. SMITH and S W O N P. SMITH are now proceeding prose, and all hfme pleadings, p p , nd othet matters to be sented on them may be served at thefollowingaddress:

5952 CurleyRoadWesley Chapel, Fiorida 335444. Plaintiffs' Nohon for Protective Order bearing certificate of service date of

September 30,2002 isDENIED.SO ORDERED this- ayo f October, 2002

CROCKETT FARNELL Qr;Circuit Court Judge @%/ pocr ,''-HOCK* a@

%c*ErL


23/23

Documents

Letter to the Inspector General for the Florida Attorney General's Office